On appeal from the Superior Court of New Jersey, Law Division, Essex County, SVP-484-08.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Before Judges C.L. Miniman and LeWinn.
B.A.O. appeals from the May 30, 2009 judgment civilly committing him pursuant to the Sexually Violent Predator Act, N.J.S.A. 30:4-27.24 to -27.38 (SVPA). The gravamen of his argument on appeal is that the judge improperly relied upon hearsay evidence, including the opinions of non-testifying experts, in concluding that he met the standards for commitment under the SVPA. We disagree and affirm.
Appellant was indicted on two counts of first-degree aggravated sexual assault, N.J.S.A. 2C:14-2(a)(1); four counts of second-degree sexual assault, N.J.S.A. 2C:14-2(b); four counts of second-degree endangering the welfare of a child, N.J.S.A. 2C:24-4(a); and one count of fourth-degree criminal sexual contact, N.J.S.A. 2C:14-3(b). Pursuant to a negotiated plea agreement, he pled guilty to one count of first-degree aggravated sexual assault and one count of second-degree sexual assault. The victims were his nephew and niece whom he sexually abused over a "several-year period [starting] when [the nephew] was four years old and [when the niece] was eight [to] twelve years old." On March 28, 2003, having been evaluated at the Adult Diagnostic Treatment Center (ADTC) pursuant to N.J.S.A. 2C:47-1, and diagnosed as a repetitive and compulsive sexual offender, he was sentenced to an aggregate term of ten years at the ADTC; he is also subject to the conditions imposed under Megan's Law, N.J.S.A. 2C:7-1 to -23.
On February 15, 2008, the State petitioned to have appellant civilly committed to the Special Treatment Unit (STU) under the SVPA. We summarize the pertinent evidence from the commitment hearing held on March 24 and April 17, 2009. The State presented the testimony of Dr. Brian Friedman, a psychologist, and Dr. Pogos Voskanian, a psychiatrist, both of whom personally interviewed appellant and reviewed numerous documents in his record.
Dr. Friedman testified that he reviewed all of appellant's prior evaluations as well as his "offending history." He "notice[d]" diagnoses in those evaluations, but "d[id] not rely upon others' diagnoses in any way." All the diagnoses in his assessment were his own, "unless . . . indicate[d] . . . parenthetically, by history, which [was] just a reference that someone else had diagnosed his condition." The judge admitted Friedman's report into evidence "with the stipulation that any inadmissible hearsay [would] not be accepted."
Friedman reviewed all of the charges in appellant's indictment, noting that he gave more weight to the two that resulted in convictions, but considered the "other allegations . . . for possible consistency or inconsistency with [the] . . . officially documented offenses on the record." He also reviewed appellant's pre-sentence report and the ADTC evaluation, both of which appellant and his criminal defense attorney had reviewed, and accepted as accurate, at sentencing.
As a result of his interview, Friedman determined that appellant "has cognitive limitations[,]" with "[c]urrent testing suggest[ing] an I.Q. . . . around [sixty]." Based upon appellant's "self-reported extensive history of being victimized sexually," Friedman diagnosed him with Post Traumatic Stress Disorder (PTSD).
Friedman stated that during the interview, appellant tended "to minimize the extent of his abuse of the children." Regarding "all of the . . . allegations including the two that led to indictments [sic], he denied any inappropriate sexual behavior with those children." Appellant told Friedman that he had "some attraction to the children" in the past but that "he doesn't feel that any longer." Friedman opined that statement was not "accurate . . . given the . . . pervasiveness of his offending, and . . . how compulsive the offending was."
Based on his review of appellant's "offending history," Friedman found the "most obvious" concern to be his "arousal toward prepubescent children." He was also concerned that appellant engaged in a variety of sexual behaviors, such as fondling, penetration and masturbation, which led him to conclude that "there are may different ways that [appellant] could potentially reoffend in the future."
Friedman diagnosed appellant with pedophilia, which "clearly predisposes him to committing . . . future acts of sexual violence." The "strength" of appellant's "pedophilic arousal" is demonstrated by his expression of disgust about his conduct but his inability to control it. Friedman opined that appellant "is ...